Citation NR: 9624055
Decision Date: 08/30/96 Archive Date: 09/04/96
DOCKET NO. 94-07 693 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to service connection for a cervical spine
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from April 1972 to April 1975.
This appeal arises from an August 1992 rating decision that
denied service connection for degenerative disc disease of
the cervical spine. The veteran has appealed to the Board of
Veterans’ Appeals (Board) for favorable resolution of this
matter. The Department of Veterans Affairs (VA) Regional
Office (RO) in Providence, Rhode Island sent the case to the
Board in 1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that she sustained a neck injury in
service and that her current cervical spine problems are
related to that injury. She requests service connection for
a cervical spine disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against granting service connection for a cervical spine
disorder.
FINDINGS OF FACT
1. The veteran’s cervical spine/neck problems in service
were acute and transitory conditions that resolved without
residual disability.
2. The veteran’s current cervical spine conditions, found
many years after service, are unrelated to an incident of
service.
CONCLUSION OF LAW
Degenerative disc disease with spondylosis and lordosis of
the cervical spine was not incurred in or aggravated by
active service, nor may arthritis of the cervical spine be
presumed to have been incurred in active service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 &
Supp. 1995); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Factual Background
The veteran had active service from April 1972 to April 1975.
The service medical records show that the veteran was seen
for pain in the neck in June 1972. A cervical spine or neck
disorder was not found. In December 1972, she was seen for a
neck injury in the gym on the previous night. She was
treated with medication for neck pain and recommended for a
physical therapy consultation. A physical therapy
consultation in December 1972 shows that she was seen for
right post spinal trapezius muscle spasms. She was fitted
for a cervical collar and give physical therapy for acute
right cervical spine pain with articular signs of limitation
of motion. A report of treatment in August 1974 notes
complaints of a stiff neck, possible injury by husband. In
September 1974, she was seen for the complaint of stiffness
in the entire spinal region. She complained of stiffness all
over. It was noted that she also had family difficulties. A
report of treatment in October 1974 notes various complaints,
including neck pain. A neck disorder was not found. In
March 1975, the veteran underwent medical examination for
separation from service. The neck and spine were normal.
VA and private medical reports show that the veteran was seen
for various problems from 1990 to 1994, primarily low back
pain beginning around August 1990. She was also seen for
cervical neck problems. A VA report of bone scan of the
spine and pelvis in November 1990 shows no abnormalities.
Private medical reports of her treatment in 1991 note a
complaint of mild neck pain.
VA X-rays of the cervical spine in January 1992 note that the
veteran had complaints of cervical spine pain and revealed
degenerative disc changes primarily at C5-6 with bilateral
mild neuroforaminal encroachment at this level. These X-rays
also revealed posterior neuroforaminal encroachment at C3-4
on the right possibly related to previous trauma.
A private medical report of MRI (magnetic resonance imaging)
of the veteran’s cervical spine in March 1992 shows moderate
sized central disc herniation of C5-6 with minimal cord
compression.
The veteran underwent a VA examination in April 1992. She
gave a history of severe cervical spine pain from around
August 1990. Motions of the cervical spine were limited due
to pain. X-rays of the cervical spine showed a shallow
cervical lordosis with slight reversal at C5-6. There was
mild posterior spondylosis at C5-6 and disk space narrowing
as well as anterior spondylosis. There were no destructive
lesions or evidence of anterior-posterior (AP) instability.
A report from a counselor of a state vocational
rehabilitation program, dated in May 1992, notes that the
veteran had a rupture in her neck at that time. It was also
noted that her doctor had released her to work.
Private medical reports of the veteran’s treatment in January
1994 note complaints of neck pain. A neurological
consultation in January 1994 shows an assessment of
degenerative joint disease with mild cervical discogenic
disease.
The veteran testified at a hearing at the RO in January 1994.
Her testimony was to the effect that she fell on her head and
neck in service, and was treated with a cervical collar and
therapy for a cervical spine condition in service. She said
that she had continuous problems with a radiating like pain
primarily affecting the left arm after service. She said
that her cervical spine condition began bothering her a few
years ago.
B. Legal Analysis
The veteran’s claim is well grounded, meaning it is
plausible. The Board finds that all relevant evidence has
been obtained with regard to the claim and that no further
assistance to the veteran is required to comply with VA’s
duty to assist her. 38 U.S.C.A. § 5107(a) (West 1991).
In order to establish service connection for a disorder, the
evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in service.
38 U.S.C.A. §§ 1110.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
“chronic.” Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Where arthritis becomes manifest to a degree of 10 percent
within 1 year from date of termination of active service, it
shall be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
The service medical records show that the veteran was seen
for cervical spine/neck problems in service, but these
records do not contain clinical findings that demonstrate a
chronic neck/cervical spine condition. Nor was a cervical
spine disorder found at the time of the veteran’s medical
examination for separation from service in March 1975.
The post-service evidence does not demonstrate the presence
of chronic cervical spine problems until around 1990, many
years after the veteran’s discharge from service, and there
is no competent evidence linking any of her current chronic
cervical spine problems to an incident of service. While the
veteran’s testimony and assertions indicate that she believes
that her current cervical spine disorder is related to the
cervical spine/neck conditions treated in service, this
evidence is not acceptable to link her current cervical spine
condition to an incident in service because, as a lay person,
the veteran does not have the competence to make conclusions
as to medical causation. Espiritu v. Derwinski, 2 Vet.App.
492 (1992).
The veteran has failed to provide evidence of continuous
symptomatology of a chronic cervical spine condition from the
time of her service until around 1990 when her current
cervical spine problems were demonstrated which is a
requirement when a condition treated in service is not shown
to be chronic. 38 C.F.R. § 3.303(b) (1995). She testified
that she continued to have arm pain following service, but
there is no showing that this symptom represented a cervical
spine disability. Moreover, when examined in 1992 she dated
her problem only back to 1990. Therefore the Board finds her
testimony neither competent nor credible as to the service
onset of the current cervical spine disability. Nor has she
has provided a reasonable explanation to account for the lack
of clinical documentation of any cervical spine condition
from the time of her service until 1990. See Mense v.
Derwinski, 1 Vet.App. 354 (1991).
After consideration of all the evidence, the Board finds that
the veteran’s cervical spine/neck conditions in service were
acute and transitory, resolved without residual disability,
and are unrelated to her current cervical spine problems,
found many years after service. The preponderance of the
evidence is against the claim, and it is denied.
Since the preponderance of the evidence is against the claim
for service connection for a cervical spine disorder, the
benefit of the doubt doctrine is not for application.
38 U.S.C.A. § 5107(b) (West 1995); Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
ORDER
Service connection for a cervical spine disorder is denied.
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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